Council Compromise Looks to Pass Despite Strong Opposition

The U.K. Presidency has pressed the EP to accept a data retention package before Dec. 31. So it was foreseeable that party leaders would angle for a common EP position, but not that they'd cave entirely to Council demands, Alvaro said. Ahead of next week’s vote, socialist and right-wing MEPs are introducing amendments to bring the EP version into line with the Council’s. As of Thurs., Alvaro said, he needs around 200 more votes to defeat it. Representatives from the European People’s Party and the Socialist Party didn’t return calls seeking comment.

Five e-communications trade groups urged MEPs toward the balanced approach to Internet traffic data retention the Council adopted on traditional telephony service, especially failed calls and mobile location data. In a joint statement late Thurs., the European Competitive Telecom Assn., GSM Europe, European Telecom Network Operators’ Assn., European Internet Services Providers Assn. and the European Cable Communications Assn. said they're the Council agreement seriously worries them.

Ministers failed to address 4 “fundamental areas” MEPs now must tackle, the groups said. First, there has been no cost-benefit appraisal. While ministers consistently have acknowledged “great uncertainty” about data retention’s impact on the Internet world, the provisions they agreed upon “go far beyond existing practice in any developed economy and are not even accompanied by any coherent justification.”

The Council measure would let member states say how long data must be retained (6-24 months); whether to store incomplete calls; whether to reimburse carriers for costs related to retention; and how data can be used. But the groups said leaving those matters to national handling won’t protect civil and privacy rights and subject communications services providers (CSPs) and law enforcement agencies to patchwork oversight.

The draft’s scope fails to address online realities, the groups said. Few existing e-mail services would come under the directive, since the world’s largest providers aren’t in Europe. Terrorists and crooks easily could dodge the rules, they said, and, as drafted, the Council version would require operators to store data on spam messages.

A 4th area of concern is reimbursement of CSPs. Unless police agencies pay to capture, store and retrieve huge amounts of data, “there is no means to ensure the right of access to data is used appropriately and proportionately,” the trade groups said. Complying with the directive will bankrupt many companies, particularly ISPs.

After 5 years of battling data retention, civil rights advocates said they're “astonished” to see a majority of the parliament ready to okay it. On Tues., European Digital Rights, Privacy International and other organizations -- including the Consumer Project on Technology, IP Justice, the Electronic Frontier Foundation, and the Electronic Privacy Information Center -- urged MEPs to “recognize the threat to European civil liberties, consumers and industry” and defeat the proposal.

The EP “doesn’t have the political muscle the U.S. Congress has” and many members are pleased the Council isn’t bypassing it, said Axel Spies, a German attorney in Washington, speaking on behalf of the German Competitive Carriers’ Assn. (VATM). They're willing to approve the compromise if “this is what it takes for the EP to sit at the table and to create a strong precedent for the EP in favor of voting on other security-related measures.”

Because the final product will be a directive instead of a framework decision, it won’t be appealable to the European Court of Justice, Alvaro said. Any challenge will have to be brought in a national court based on a nation’s particular implementation of the law, something Alvaro said he’s quite sure interested parties are already studying.

A vote on the data retention directive is set for Dec. 13, but that could change, he said.